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FILED

DEC 07 2015

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-15-1008-KuFKi

 )

LAVESTA M. LOCKLIN, ) Bk. No. 13-24951

 )

Debtor. )

_______________________________)

 )

RELIANCE STEEL & ALUMINUM CO.; )

STEPHEN G. OPPERWALL, )

 )

Appellants,)

 )

v. ) MEMORANDUM*

 )

LAVESTA M. LOCKLIN, )

 )

Appellee. )

_______________________________)

Argued and Submitted on October 22, 2015

at Los Angeles, California

Filed – December 7, 2015

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Mark D. Houle, Bankruptcy Judge, Presiding

 

Appearances: Robert P. Goe of Goe & Forsythe, LLP argued for

appellee LaVesta M. Locklin.**

 

Before: KURTZ, FARIS and KIRSCHER, Bankruptcy Judges.

*This disposition is not appropriate for publication. 

Although it may be cited for whatever persuasive value it may

have (see Fed. R. App. P. 32.1), it has no precedential value. 

See 9th Cir. BAP Rule 8024-1.

**Counsel for appellants Reliance Steel & Aluminum Co. and

Stephen G. Opperwall did not appear for oral argument, so

appellants’ position was deemed submitted on their appeal briefs

and on the appellate record.
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INTRODUCTION

Reliance Steel & Aluminum Co. and its counsel Stephen

Opperwall appeal from the bankruptcy court’s order pursuant to

11 U.S.C. § 362(k)1 determining that they willfully violated the

automatic stay and awarding against them actual damages of $7,033

and punitive damages of $2,500.

Reliance and Opperwall assert that, when they sent letters

to the debtor’s real estate broker referencing the pending courtapproved sale of the debtor’s residence and notifying the broker

that Reliance held certain judgment liens, they were not trying

to interfere with the sale or to control property of Locklin’s

bankruptcy estate. The bankruptcy found Reliance’s and

Opperwall’s assertions disingenuous, and the record supports that

finding. 

Reliance and Opperwall further assert that the bankruptcy

court should not have awarded the debtor any of her attorney’s

fees as actual damages given that there was no evidence of any

injury (other than the fees) resulting from their conduct. 

Reliance’s and Opperwall’s assertion regarding the fee award is

inconsistent with the plain language of § 362(k) and with binding

Ninth Circuit authority.

Accordingly, we AFFIRM the bankruptcy court’s stay violation

order.

1Unless specified otherwise, all chapter and section

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and

all “Rule” references are to the Federal Rules of Bankruptcy

Procedure.

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FACTS

For many years, LaVesta Locklin’s husband Bill operated 

Nightscaping, Inc. and Loran, Inc., which were in the business of

designing, manufacturing and selling landscape lighting products. 

Bill was the sole owner of Nightscaping and Loran until his death

in December 2007, at which point Locklin became the sole owner.

Thereafter, the businesses took a serious turn for the worse. 

Notwithstanding Locklin’s attempts to right the businesses by

investing significant amounts of capital and by hiring a

professional senior management team, her efforts did not save the

businesses, which ceased operations in September 2013. 

Reliance’s relationship with Nightscaping and Loran dates

back to at least 2006. At that time, Reliance agreed to sell to

Nightscaping and Loran, on credit, materials the businesses

needed for their manufacturing processes. Nightscaping’s and

Loran’s business records reflect that, between 2006 and 2012,

they fully paid 94 of 95 Reliance invoices. According to those

records, Reliance’s last invoice in the approximate amount of

$9,500 was only partially paid. The unpaid balance of roughly

$8,000 has spawned a great deal of expensive litigation between

the parties.

In September 2013, one week after Locklin commenced her

personal chapter 11 case, Reliance sued Nightscaping, Loran and

Locklin in the Los Angeles County Superior Court. Locklin

presumably did not list Reliance as one of her creditors because,

in her view, Reliance was a trade creditor of the businesses and

was not one of her personal creditors. Reliance saw it

differently. Reliance’s state court complaint alleged that

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Locklin was liable to Reliance as Nightscaping’s and Loran’s

alter ego. Reliance learned of Locklin’s bankruptcy case by no

later than the beginning of February 2014, when it filed a proof

of claim in Locklin’s bankruptcy case. Eventually, in March

2014, Reliance dismissed Locklin from the state court lawsuit,

without prejudice. But Reliance obtained a default judgment

against Nightscaping and Loran on July 30, 2014.

After hotly contested claim litigation spanning several

months, the bankruptcy court disallowed Reliance’s claim against

Locklin because Reliance never substantiated its alter ego

allegations against Locklin.2

In July 2014, shortly before the bankruptcy court’s claim

disallowance ruling, the bankruptcy court granted Locklin’s

motion to sell her personal residence on Walnut Street in

Redlands, California. Copies of both the notice of the sale

motion and the sale order were served on Opperwall. In relevant

part, these documents identified Blesch & Associates Real Estate

as Locklin’s real estate broker and provided for Locklin’s

bankruptcy counsel, after sale closing, to hold the net sale

proceeds pending further order of court.

On August 29, 2014, the same day the bankruptcy court

entered its claim disallowance order, Opperwall served by mail on

2The bankruptcy court’s claim disallowance order is the

subject of a separate appeal (BAP No.CC-14-1446). In that

appeal, we are vacating the claim disallowance order and

remanding for further proceedings. Even so, in and around

September 2014, at the time Reliance and Opperwall engaged in the

conduct that led to the stay violation proceedings, the

bankruptcy court had just disallowed Reliance’s proof of claim

against Locklin.

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Jane Blesch of Blesch & Associates a two-page Notice of Judgment

lien. The first page of the Notice of Judgment Lien identified

Nightscaping as the judgment debtor, and the second page

identified Loran as an additional judgment debtor. The Notice of

Judgment lien did not identify Locklin as a judgment debtor, but

the proof of service attached to the Notice of Judgment lien

contained the following information at the very top of the page:

PROOF OF SERVICE BY MAIL

(Reliance Steel & Aluminum Co. dba MetalCenter v.

Nightscaping, Inc.; Loran, Inc.; LaVesta Locklin)

(Los Angeles County Superior Court Case Number 13K12928)

Notice of Judgment Lien (Aug. 29, 2014) (emphasis in original).

When Opperwall served the Notice of Judgment Lien on Blesch,

he did not explain why he had served it on her or what

information, right or demand he was attempting to communicate to

Blesch. Apparently not satisfied that he had fully conveyed

whatever he was attempting to convey to Blesch, on September 9,

2014, Opperwall emailed to Jerritt Watts of Blesch & Associates a

cover letter and several enclosures related to Reliance’s state

court litigation against Nightscaping, Loran and Locklin.3 In

the cover letter, the first thing Opperwall told Watts was: “I

represent Reliance Steel & Aluminum Co. in the above referenced

case against Defendants Nightscaping, Inc.; Loran, Inc.; LaVesta

Locklin; and DOES 1-50.” Letter (Sept. 9, 2014). Notably, by

using the present tense and by including Locklin in his list of

defendants, Opperwall effectively advised Watts that his

3In addition to emailing the letter and enclosures to Watts,

Opperwall also mailed the letter and enclosures.

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representation of Reliance against Locklin in the state court

litigation was ongoing. 

Opperwall did not advise Watts that Reliance had dismissed

Locklin from the state court litigation in March 2014. Nor did

Opperwall identify the specific purpose or relevance of his cover

letter and the enclosures; however, immediately after identifying

himself as counsel for Reliance, Opperwall stated in the cover

letter: “I am informed that you have an escrow open for the sale

of real property regarding the bankruptcy of Lavesta Locklin.” 

The four documents Opperwall enclosed with the cover letter were

copies of the following: (1) Reliance’s complaint against

Nightscaping, Loran and Locklin; (2) Reliance’s Abstract of

Judgment against Nightscaping and Loran; (3) Reliance’s Default

Judgment against Nightscaping and Loran; and (4) Reliance’s

Notice of Judgment lien against Nightscaping and Loran.

Roughly two weeks after Opperwall corresponded with Watts,

Locklin filed her motion seeking a determination that Reliance

and Opperwall had willfully violated the automatic stay. In the

motion, Locklin requested an injunction prohibiting Opperwall

from all further attempts to collect upon Reliance’s disallowed

claim against Locklin and her property. Locklin further reserved

the right to prove up her entitlement to recover actual damages

and punitive damages under § 362(k). At the time Locklin filed

her stay violation motion, the sale of Locklin’s residence was

still pending. At some point thereafter, the sale fell through,

and the escrow was cancelled.

In opposition to the motion, Reliance and Opperwall denied

that they had violated the automatic stay (willfully or

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otherwise) by sending the letters. They contended that they had

not been attempting to assert a claim or interest against

property of the estate or to interfere with the sale of estate

property. According to Opperwall’s supporting declaration, he

had sent the letters to Blesch and Watts just in case it turned

out that Nightscaping or Loran held some right to a portion of

the proceeds from the sale of Locklin’s residence. But Reliance

and Opperwall never identified what that interest might be, nor

did they ever come forward with any evidence (or even factual

allegations) to support their theory that Nightscaping or Loran

might have held an interest in the residence or its proceeds. 

In fact, Locklin’s bankruptcy schedules and her motion to

sell the residence both identified the residence as property of

Locklin’s bankruptcy estate. Tellingly, while the sale motion

proceedings were taking place in the bankruptcy court, neither

Reliance nor Opperwall made any attempt to assert that either

Nightscaping or Loran had a legally cognizable interest in the

residence or its proceeds.

On October 21, 2014, the bankruptcy court held its initial

hearing on Locklin’s stay violation motion. The court was not

persuaded by the stated purpose offered by Reliance and Opperwall

for their conduct. The court instead found that their actions in

sending the letters to Blesch and Watts were attempts to exercise

control over property of the estate, to enforce a lien against

property of the estate, and to collect on a (disallowed) prepetition claim. The court further found that Reliance’s and

Opperwall’s actions constituted willful stay violations within

the meaning of § 362(k) and that the matter should be continued

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to enable the parties to fully address the damages issue.

After the submission of evidence regarding damages, further

briefing and two additional hearings, the bankruptcy court 

awarded Locklin as actual damages only a fraction of the fees she

requested. Locklin requested over $16,000 in fees, but the

bankruptcy court limited the actual damages award to $7,033 based

on the following reasoning and findings:

[G]iven the multiple violations of the stay and the

circumstances of the case, the Court is inclined to

find that Debtor’s actual damages here include fees

incurred by counsel in filing the Motion for Violation

of the Stay, but which the Court will reduce taking

into account (1) somewhat excessive amounts billed for

drafting the Motion, (2) the fact that Debtor did not

attempt to communicate with Reliance prior to filing

the Motion, and (3) the fact that the arguable effected

sale of the Walnut Property fell through by no fault of

the Correspondence. Here, the Court will allow amounts

of $2,033 for fees incurred for correspondence with the

broker, analyzing the Correspondence from Reliance and

research regarding a possible stay violation. The

Court will allow a further $5,000 for fees incurred in

connection with the Motion, reduced as discussed above

from the total balance requested on reasonableness

grounds given the circumstances of the case, for a

total fee award of $7,033.

Tent. Ruling attached to and incorporated into bankruptcy court’s

stay violation order (Dec. 30, 2014). 

In support of its punitive damages award, the bankruptcy

court in essence found that, given the timing and nature of

Opperwall’s letters, Reliance and Opperwall intentionally sought

to interfere with Locklin’s court-authorized sale of her

residence and to exercise control over her residence and the

anticipated sale proceeds in reckless disregard of Locklin’s

rights as a debtor in possession and notwithstanding the

bankruptcy court’s prior determination that Reliance did not have

an allowable claim against Locklin. Based on these findings, the

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bankruptcy court awarded Locklin $2,500 in punitive damages.

The bankruptcy court entered its stay violation order on

December 30, 2014, and Reliance and Opperwall timely appealed.

JURISDICTION

The bankruptcy court had jurisdiction pursuant to 28 U.S.C.

§§ 1334 and 157(b)(2)(A), and we have jurisdiction under

28 U.S.C. § 158.

ISSUES

1. Did the bankruptcy court err when it determined that Reliance

and Opperwall violated the automatic stay?

2. Did the bankruptcy court err when it determined that

Locklin’s reasonably-incurred attorney’s fees were recoverable as

actual damages within the meaning of § 362(k)? 

STANDARDS OF REVIEW

The scope of the automatic stay, and the actions enjoined by

it, are questions of law we review de novo. Eskanos & Adler,

P.C. v. Leetien, 309 F.3d 1210, 1213 (9th Cir. 2002). But the

determination of what actions Reliance and Opperwall took, the

underlying purpose of those actions, and whether their stay

violations were willful are questions of fact reviewed under the

clearly erroneous standard. Id.

The amount of damages awarded is reviewed for an abuse of

discretion. Id. The bankruptcy court abused its discretion if

it incorrectly construed or applied a legal rule or its factual

findings were illogical, implausible or without support in the

record. United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.

2009) (en banc).

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DISCUSSION

The automatic stay is an essential component of the

Bankruptcy Code. See America’s Servicing Co. v. Schwartz-Tallard

(In re Schwartz-Tallard), 803 F.3d 1095, 1100 (9th Cir. 2015) (en

banc). It gives the debtor respite from creditor activity and

maintains the status quo among the creditors in order to

forestall a creditor race to the courthouse and to facilitate an

orderly and equitable distribution of the estate’s assets. See

id.; Hillis Motors, Inc. v. Haw. Auto. Dealers’ Ass’n, 997 F.2d

581, 585-86 (9th Cir. 1993).

In order to preserve and promote the efficacy of the

automatic stay, it is liberally construed and strenuously

enforced. See, e.g., In re Schwartz-Tallard, 803 F.3d at 1100; 

Schwartz v. United States (In re Schwartz), 954 F.2d 569, 571

(9th Cir. 1992). Apparently dissatisfied with the debtor

remedies formerly available against stay violators, Congress

amended the Bankruptcy Code in 1984 to add § 362(h), which was

re-designated as § 362(k) in 2005. See In re Schwartz-Tallard,

803 F.3d at 1098; see also In re Kutumian, 2014 WL 2024789, at

*10 (Bankr. E.D. Cal. 2014) (discussing legislative history). 

Section 362(k)(1) provides in relevant part: “[A]n individual

injured by any willful violation of a stay provided by this

section shall recover actual damages, including costs and

attorneys’ fees, and, in appropriate circumstances, may recover

punitive damages.”

A stay violation is willful if the alleged violator knew of

the automatic stay and if his or her actions were intentional. 

Leetien, 309 F.3d at 1215. In turn, the alleged violator is

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charged with knowledge of the automatic stay if he or she knew of

the debtor’s bankruptcy case. Knupfer v. Lindblade (In re Dyer),

322 F.3d 1178, 1191 (9th Cir. 2003); see also Ozenne v. Bendon

(In re Ozenne), 337 B.R. 214, 220 (9th Cir. BAP 2006) (“Knowledge

of the bankruptcy filing is the legal equivalent of knowledge of

the automatic stay.”). There is no dispute here that Reliance

and Opperwall knew about Locklin’s bankruptcy case and acted

intentionally when they sent the letters to Blesch and Watts. 

Until recently, in order to recover attorney’s fees, Locklin

would have needed to prove that Reliance’s and Opperwall’s

conduct qualified as ongoing stay violations – that the

attorney’s fees were incurred to end the stay violations or to

nullify their effect. See Sternberg v. Johnston, 595 F.3d 937,

947 (9th Cir. 2010). However, an en banc panel of the Ninth

Circuit Court of Appeals has overruled Sternberg. 

In re Schwartz-Tallard, 803 F.3d at 1097. In re Schwartz-Tallard

held that all reasonable attorney’s fees that an individual

debtor incurs in enforcing the stay – including the fees incurred

in prosecuting a damages action for violation of the stay – are

recoverable as actual damages under § 362(k)(1). Id. at 1101. 

Thus, in light of In re Schwartz-Tallard, bankruptcy courts no

longer need to distinguish between those fees incurred to end the

stay violation and those fees incurred to recover damages. Id. 

Simply put, under In re Schwartz-Tallard, all of these fees

qualify as actual damages for purposes of § 362(k)(1). Id.

Reliance and Opperwall only make two arguments on appeal,

and neither argument has any merit. First, they argue that the

bankruptcy court erred when it found that their letters amounted

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to acts taken to interfere with Locklin’s sale of her residence

and to exercise control over estate property and, hence,

constituted stay violations. The bankruptcy court’s finding

regarding the underlying purpose of the letters qualifies as a

reasonable inference drawn from the evidence in the record. 

While the bankruptcy court alternately could have arrived at a

different inference, we cannot say that this inference was

clearly erroneous. See Anderson v. City of Bessemer City, N.C.,

470 U.S. 564, 574 (1985) (“Where there are two permissible views

of the evidence, the fact finder's choice between them cannot be

clearly erroneous.”); see also Retz v. Samson (In re Retz),

606 F.3d 1189, 1196 (9th Cir. 2010) (holding that bankruptcy

court’s findings of fact are clearly erroneous only if they are

“illogical, implausible, or without support in the record.”).

Second, Reliance and Opperwall argue that the bankruptcy

court should not have awarded any attorney’s fees to Locklin

because Locklin did not suffer any actual damages as a result of

their stay violations. This argument incorrectly assumes that

Locklin’s attorney’s fees do not qualify as actual damages and

that attorney’s fees are recoverable under § 362(k) only if the

debtor suffered another form of injury as a result of the stay

violations. Neither of these assumptions can be reconciled with

the plain language of § 362(k) or with In re Schwartz-Tallard. 

At another level, Reliance’s and Opperwall’s second argument

challenges the notion that their willful stay violations (sending

the letters) were significant enough to justify the need for any

action on the part of Locklin. They contend that their stay

violations were not subject to “re-occurrence” and that their

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conduct was “discrete and complete” once they finished sending

the letters. In essence, they are arguing that none of the fees

Locklin incurred were reasonable because their own conduct was so

minimal and legally ineffectual in relation to Locklin and her

estate property that no response was reasonably necessary.

The bankruptcy court disagreed, and so do we. The record

indicates that at least some of the attorney’s fees arose from

Locklin’s counsel’s need to communicate with the real estate

broker regarding the significance of the letters. 

In re Schwartz-Tallard explicitly held that attorney’s fees

incurred outside of a court proceeding to address a willful stay

violation are recoverable as actual damages under § 362(k)(1). 

In re Schwartz-Tallard, 803 F.3d at 1099.

More importantly, the bankruptcy court in effect found that,

if Locklin had not requested relief from the court in response to

the letters, the potential chilling effect of the letters on the

sale closing and on the distribution of the sale proceeds would

have remained unremediated – at least until the escrow was later

cancelled. We cannot say that the bankruptcy court’s findings in

this regard were clearly erroneous. Moreover, as the bankruptcy

court’s additional findings indicate, absent Locklin’s stay

violation motion, Reliance and Opperwall would have continued to

have incentive to further interfere with other aspects of the

administration of Locklin’s bankruptcy estate in the hopes of

leveraging a nuisance payoff from Locklin. 

The bankruptcy court correctly found that, before filing the

stay violation motion, Locklin’s counsel should have attempted to

rectify the stay violations by contacting Opperwall and demanding

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that he and Reliance take action to terminate their stay

violations and nullify their effect. The bankruptcy court

correctly took this finding into account in calculating what

portion of Locklin’s fees should be awarded as reasonable. But

this finding did not vitiate the stay violations or change the

fact that Reliance and Opperwall disputed that the stay

violations had occurred and thereby rendered it necessary for the

bankruptcy court to render a stay violation ruling. Furthermore,

given the parties’ litigation history and their respective

positions on the stay violation issue, we agree with the

bankruptcy court that any advance discussions between the parties

on the stay violation issue likely would not have resolved the

issue without court intervention.

It also is worth noting that Reliance and Opperwall never

took any action in an attempt to remediate or limit the potential

negative impact of their letters on Locklin’s then-pending sale

of her residence. See In re Dyer, 322 F.3d at 1192 (holding that

stay violators have an affirmative duty to remedy their stay

violations). Among other things, Reliance and Opperwall could

have sent clarifying letters to Blesch and Watts disclaiming any

interest in Locklin’s property or the proceeds of Locklin’s

property. Instead, Reliance and Opperwall disputed that the

letters they sent violated the stay. And, as the bankruptcy

court put it, they disingenuously protested their innocent

intent. They claimed that they had not intended (1) to interfere

with the court-approved sale, (2) to interfere with the courtapproved distribution of the sale proceeds, or (3) to insinuate

that Reliance had some sort of claim against Locklin or her

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residence. The record supports the bankruptcy court’s finding

that this is precisely what Reliance and Opperwall intended. 

In short, the bankruptcy court did not abuse its discretion

when it awarded Locklin $7,033 in fees as actual damages arising

from Reliance’s and Opperwall’s willful stay violations. 

Reliance’s and Opperwall’s opening brief did not address the

issue of whether the bankruptcy court erred in awarding punitive

damages. Consequently, Reliance and Opperwall have forfeited

this issue. See Christian Legal Soc'y v. Wu, 626 F.3d 483,

487–88 (9th Cir. 2010); Brownfield v. City of Yakima, 612 F.3d

1140, 1149 n.4 (9th Cir. 2010).

On appeal, after this Panel set this matter for oral

argument, Reliance and Opperwall filed a motion to continue oral

argument. We denied that motion because Reliance’s and

Opperwall’s motion did not explain why they had not followed the

Panel’s procedures for notifying the court of their

unavailability for oral argument. Those procedures were set

forth in the Panel’s briefing order served on all of the parties. 

After we denied the continuance motion, Reliance and Opperwall

filed additional papers attempting to persuade the Panel that

oral argument should be taken off calendar. In support, Reliance

and Opperwall also submitted a request for judicial notice

seeking to have us consider documents beyond the scope of the

record in this appeal and irrelevant to the issues on appeal and

to our basis for denying their continuance motion. Nothing

presented by Reliance and Opperwall persuades us that holding

oral argument without their counsel being present was unfair,

given their failure to follow the Panel’s procedures. Therefore,

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we reaffirm our denial of their requests for relief relating to

oral argument, and we also hereby ORDER DENIED their request for

judicial notice. 

CONCLUSION

For the reasons set forth above, we AFFIRM the bankruptcy

court’s stay violation order.

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